penalty instruction in Florida

1988As noted in Alvord , "[t]here should not be a narrow application or interpretation of *128 the rules of evidence in the penalty hearing, whether in regard to relevance or any other matter except illegally seized evidence." 322 So.2d at 539 (citing State v. Dixon, 283 So.2d 1 (Fla. 1973), cert. denied sub nom.

1978State v. Dixon, supra .

1981At the time of Williams’ trial, there was disagreement whether the rule was discretionary, see Tascano v. State, 363 So.2d 405 (Fla. 1st DCA 1978), or mandatory, see Williams v. State, 378 So.2d 902 (Fla. 5th DCA 1980); Murray v. State, 378 So.2d 111 (Fla. 5th DCA 1980).

1980For this reason, I believe that the opinion in Tascano v. State, 363 So.2d 405 (Fla. 1st DCA, 1978) is correct and that the trial judge may exercise his discretion in giving to the jury or withholding from them a penalty instruction.

2004Id. at 113-14 .

2004Id. at 113-14 .

1981Kelly v. State, 389 So.2d 250 (Fla.2d DCA 1980), as adopted and followed in Bailey v. State, 393 So.2d 24 (Fla. 3d DCA 1980); Atkinson v. State, 378 So.2d 324 (Fla. 3d DCA 1980); White v. State, 324 So.2d 115 (Fla. 3d DCA), cert. dismissed, 339 So.2d 1173 (Fla. 1976); Fla.R.Crim.P. 3.390(d); see Tascano v. State, 393 So.2d 540 (Fla. 1980).

1981See, e.g., Bell v. State, 396 So.2d 270 (Fla. 3d DCA 1981); Bailey v. State, 393 So.2d 24 (Fla. 3d DCA 1981); Rodriguez v. State, 385 So.2d 1019 (Fla. 3d DCA 1981) (opinions silent, but records reflect trials concluded before June 5, 1980); Johnson v. State, 394 So.2d 1121 (Fla. 5th DCA 1981); Meeks v. State, supra ; Bassett v. State, 392 So.2d 1025 (Fla. 5th DCA 1981); Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980) (implicit in opinions that trials concluded pre- Tascano ). [2] Williams' request for a penalty instruction necessarily was based on Rule 3.390(a), as amended in 1977.

1981We consider the inclusion of the penalty instruction in this rule to be as fortuitous as the inclusion of the requirement that the court instruct the jury as to the degrees of the offense found in separate Rule 3.490 under Section XI pertaining to The Verdict. .On at least five recent occasions, the Fifth District has certified the following question to the Florida Supreme Court: “Can an appellate court apply the harmless error doctrine, Section 924.33 and Section 59.041, Florida Statutes (1979), to the failure of a trial court to give the jury instruction required by Florida Rule of Criminal

1981We consider the inclusion of the penalty instruction in this rule to be as fortuitous as the inclusion of the requirement that the court instruct the jury as to the degrees of the offense found in separate Rule 3.490 under Section XI pertaining to The Verdict. [7] On at least five recent occasions, the Fifth District has certified the following question to the Florida Supreme Court: "Can an appellate court apply the harmless error doctrine, Section 924.33 and Section 59.041, Florida Statutes (1979), to the failure of a trial court to give the jury instruction required by Florida Rule of Crimin

1981We consider the inclusion of the penalty instruction in this rule to be as fortuitous as the inclusion of the requirement that the court instruct the jury as to the degrees of the offense found in separate Rule 3.490 under Section XI pertaining to The Verdict. .On at least five recent occasions, the Fifth District has certified the following question to the Florida Supreme Court: “Can an appellate court apply the harmless error doctrine, Section 924.33 and Section 59.041, Florida Statutes (1979), to the failure of a trial court to give the jury instruction required by Florida Rule of Criminal

1981We consider the inclusion of the penalty instruction in this rule to be as fortuitous as the inclusion of the requirement that the court instruct the jury as to the degrees of the offense found in separate Rule 3.490 under Section XI pertaining to The Verdict. [7] On at least five recent occasions, the Fifth District has certified the following question to the Florida Supreme Court: "Can an appellate court apply the harmless error doctrine, Section 924.33 and Section 59.041, Florida Statutes (1979), to the failure of a trial court to give the jury instruction required by Florida Rule of Crimin

1981At the time of Williams’ trial, there was disagreement whether the rule was discretionary, see Tascano v. State, 363 So.2d 405 (Fla. 1st DCA 1978), or mandatory, see Williams v. State, 378 So.2d 902 (Fla. 5th DCA 1980); Murray v. State, 378 So.2d 111 (Fla. 5th DCA 1980).

1981At the time of Williams' trial, there was disagreement whether the rule was discretionary, see Tascano v. State, 363 So.2d 405 (Fla. 1st DCA 1978), or mandatory, see Williams v. State, 378 So.2d 902 (Fla. 5th DCA 1980); Murray v. State, 378 So.2d 111 (Fla. 5th DCA 1980).

1981At the time of Williams’ trial, there was disagreement whether the rule was discretionary, see Tascano v. State, 363 So.2d 405 (Fla. 1st DCA 1978), or mandatory, see Williams v. State, 378 So.2d 902 (Fla. 5th DCA 1980); Murray v. State, 378 So.2d 111 (Fla. 5th DCA 1980).

1981At the time of Williams' trial, there was disagreement whether the rule was discretionary, see Tascano v. State, 363 So.2d 405 (Fla. 1st DCA 1978), or mandatory, see Williams v. State, 378 So.2d 902 (Fla. 5th DCA 1980); Murray v. State, 378 So.2d 111 (Fla. 5th DCA 1980).

1981We consider the inclusion of the penalty instruction in this rule to be as fortuitous as the inclusion of the requirement that the court instruct the jury as to the degrees of the offense found in separate Rule 3.490 under Section XI pertaining to The Verdict. .On at least five recent occasions, the Fifth District has certified the following question to the Florida Supreme Court: “Can an appellate court apply the harmless error doctrine, Section 924.33 and Section 59.041, Florida Statutes (1979), to the failure of a trial court to give the jury instruction required by Florida Rule of Criminal

1981We consider the inclusion of the penalty instruction in this rule to be as fortuitous as the inclusion of the requirement that the court instruct the jury as to the degrees of the offense found in separate Rule 3.490 under Section XI pertaining to The Verdict. [7] On at least five recent occasions, the Fifth District has certified the following question to the Florida Supreme Court: "Can an appellate court apply the harmless error doctrine, Section 924.33 and Section 59.041, Florida Statutes (1979), to the failure of a trial court to give the jury instruction required by Florida Rule of Crimin

1981To the extent that Rodriguez v. State, 396 So.2d 798 , 800 n. 5 (Fla. 3d DCA 1981), and Bassett v. State, supra, suggest that because the penalty instruction is required by Rule 3.390(a) and the objection requirement is found in (d) of the same rule, there is a greater necessity of objection in the case of a penalty instruction, we disagree.

1981To the extent that Rodriguez v. State, 396 So.2d 798 , 800 n. 5 (Fla. 3d DCA 1981), and Bassett v. State, supra , suggest that because the penalty instruction is required by Rule 3.390(a) and the objection requirement is found in (d) of the same rule, there is a greater necessity of objection in the case of a penalty instruction, we disagree.

1981We consider the inclusion of the penalty instruction in this rule to be as fortuitous as the inclusion of the requirement that the court instruct the jury as to the degrees of the offense found in separate Rule 3.490 under Section XI pertaining to The Verdict. .On at least five recent occasions, the Fifth District has certified the following question to the Florida Supreme Court: “Can an appellate court apply the harmless error doctrine, Section 924.33 and Section 59.041, Florida Statutes (1979), to the failure of a trial court to give the jury instruction required by Florida Rule of Criminal

1981See, e.g., Bell v. State, 396 So.2d 270 (Fla. 3d DCA 1981); Bailey v. State, 393 So.2d 24 (Fla. 3d DCA 1981); Rodriguez v. State, 385 So.2d 1019 (Fla. 3d DCA 1981) (opinions silent, but records reflect trials concluded before June 5, 1980); Johnson v. State, 394 So.2d 1121 (Fla. 5th DCA 1981); Meeks v. State, supra ; Bassett v. State, 392 So.2d 1025 (Fla. 5th DCA 1981); Kelly v. State, 389 So.2d 250 (Fla. 2d DCA 1980) (implicit in opinions that trials concluded pre- Tascano ). [2] Williams' request for a penalty instruction necessarily was based on Rule 3.390(a), as amended in 1977.

1931It. expressly repealed the first and second sections of the act of 1833, but left the penalty clause unrepealed, and this provided that on any usurious contract ‘the interest 'on the same usurious contract shall be void and the obligor or obligors forever exonerated from the payment of the same. ’ The opinion in Mitchell v. Doggett, supra, was predicated upon the theory that the contract sued on was void.

1917It expressly repealed the first and second sections of the Act of 1833, but left the penalty clause unrepealed, and this provided that on any usurious contract “the interest on the usurious contract shall be void and the obligor or obligors forever exonerated from the payment of the same.” The opinion in Mitchell v. Doggett, supra, was predicated upon the theory that the contract sued on was void.

2018Hagan I, 235 So. 3d at 981-82 ; see also City of Miami v. Reynolds, 34 So. 3d 119, 120 (Fla. 3d DCA 2010) (concluding that “once misconduct has been determined by the Civil Service 12 Board, the penalty to be assessed comes within the exclusive discretion of the City Manager and may be imposed without elucidation”); Kee v. Miami-Dade Cty., 760 So. 2d 1094, 1094-95 (Fla. 3d DCA 2000) (concluding that the County Manager had complete discretion to determine the appropriate penalty where the hearing officer had decided that an offense requiring discipline had been committed, and therefore, denying

2017City of Miami v. Reynolds, 34 So.3d 119 (Fla. 3d DCA 2010), supra; Miami-Dade Cnty v. Jones, 778 So.2d 409 (Fla. 3d DCA 2001) (same); Kee v. Miami-Dade Cnty, 760 So.2d 1094 (Fla. 3d DCA 2000) (denying petition for certiorari "because the county manager has the complete discretion to determine the appropriate penalty where the hearing officer has decided that an offense requiring discipline was committed.”); City of Miami v. White, 165 So.2d 790, 791 (Fla. 3d DCA 1964) (“It may be that the punishment imposed was severe and obviously it was more severe than would have been imposed by the Civil S

2000Higgenbotham partially receded from Metropolitan Dade County v. Bannister, 683 So.2d 130 (Fla. 3d DCA 1996), in which this Court reached two conclusions: (1) that the county manager could conduct a de novo review of the record, and that such a decision could not be disturbed unless there was no substantial competent evidence in the record to support it; and (2) that the manager would have the complete discretion to determine the appropriate penalty where the hearing officer decided that an offense had been committed by the employee.

2000Higgenbotham, 733 So.2d at 1044 .